Former Virginia governor Robert F. McDonnell on Monday added a bevy of high-profile supporters to the list of people who want to see his public corruption conviction tossed out, including former U.S. and state attorneys general, White House lawyers, prominent business leaders and law professors.
As of just before midnight, 10 separate groups or individuals had filed or requested to file amicus briefs supporting the governor’s appeal, arguing that his conviction was flawed and that letting the case stand could have far-reaching repercussions.
Forty-four former state attorneys general asserted that if upheld, the former Republican governor’s conviction would change the face of U.S. politics.
“The District Court handed federal prosecutors virtually unfettered discretion to prosecute state officials for political courtesies and other innocent acts that are a routine part of American political life,” the former state attorneys general said in the brief. “No lunch with a lobbyist is safe.”
The full-court press to the U.S. Court of Appeals for the 4th Circuit came after McDonnell sent a personal appeal to some of those whose support he might have wanted or ultimately received. “This is important not just for me but for all elected officials in saying routine acts for donors are not illegal,” he wrote in an e-mail sent over the weekend to at least some state lawmakers. “Appreciate your friendship,” he signed off.
The request by the well-liked former governor came at a politically awkward time for state lawmakers , who have spent the past two legislative sessions trying to reform the state’s ethics laws in response to the McDonnell scandal. House Democrats have been pushing Gov. Terry McAuliffe (D) to close loopholes in the latest ethics bill, which they panned as too weak.
Sixteen current and former Virginia senators and 24 current and former members of the Virginia House of Delegates nonetheless supported a brief that argued that if the case were to stand, “Virginia’s legislators may be forced to scale back constituent services and other socially beneficial efforts, such as encouraging business development in their districts.”
Del. Charniele L. Herring (D-Alexandria), chairwoman of the House Democratic caucus, sent an e-mail to colleagues Friday after several sought her advice, advising them not to join any amicus briefs.
“I must share my serious concerns and advise against putting your name on such a brief,” Herring wrote. “ . . . It makes no sense to take opposing positions on the issue of ethics. Also, it does not serve anyone well (you, your constituents, nor our caucus) to make an argument in defense of our former Governor.”
Sen. Janet D. Howell (D-Fairfax) said she was approached via e-mail or text about signing twice in the past week, first by McDonnell, then by a mutual friend whom she declined to identify.
She did not respond to McDonnell’s message, which she assumed had been sent to many lawmakers. But she felt she had to answer the friend — with a no. Howell said that was difficult because, despite their political differences, she and McDonnell had worked well together for years.
“I replied that I couldn’t do it because I thought he was guilty,” she said. “I thought what he did was wrong and illegal.”
McDonnell (R) and his wife, Maureen, were convicted in September of public corruption, after a jury determined they used the governor’s office to help businessman Jonnie R. Williams Sr. promote his dietary supplement company in exchange for $177,000 in loans, personal gifts and luxury goods. McDonnell was sentenced to two years in prison, his wife to a year and a day. Both have appealed their cases, and they have been allowed to remain out of prison on bond while the higher court considers their arguments.
The Republican Governors Public Policy Committee, the National Association of Criminal Defense Lawyers, six former Virginia attorneys general and two groups of law instructors also filed briefs supporting the onetime governor.
Former NAACP president Ben Jealous, who is said to be considering a run for the U.S. Senate seat in Maryland that comes open in 2017 also weighed in, arguing that jurors in McDonnell’s case were not questioned thoroughly enough about pre-trial publicity.
Joshua Stueve, a spokesman for the U.S. Attorney’s Office in the Eastern District of Virginia, declined to comment for this story. Prosecutors are not required to respond to McDonnell’s appeal until later this month, and arguments in the case are scheduled for May.
Barry Pollack, a white-collar criminal defense lawyer at the Miller & Chevalier law firm, said the briefs could have real influence. He said that the McDonnell case presents “novel issues” and that the appeals court will likely want to consider the far-reaching consequences of its ruling.
“In the right case, with the right amicus, it can be a game changer,” Pollack said.
McDonnell’s supporters certainly did not lack for name recognition. Former attorneys general John Ashcroft and Michael B. Mukasey, former congressman James P. Moran (D-Va.), and former solicitor general Theodore B. Olson were among 13 signers of one brief that its authors noted was also joined by “Counsels to the President who have served every President of the United States since Ronald Reagan.”
Among the prominent Republicans joining another brief were Rep. Scott Rigell (Va.), former Georgia governor Sonny Perdue and former Mississippi governor Haley Barbour, Liberty University President Jerry Falwell Jr. and conservative icon Pat Robertson. Former Maryland attorney general Douglas F. Gansler and former D.C. attorney general Frederick D. Cooke Jr. were in the group of non-Virginia attorneys general.
Most of those who argued in support of the governor took aim at the notion that he performed or promised to perform an “official act” for Williams — a point prosecutors were required to prove to substantiate the corruption charges.
The brief that was signed by the former U.S. attorneys general argued that the judge’s definition of “official act” in the McDonnell case was “so broad that even kissing a baby on the campaign trail would qualify as an official act.”
“[T]he ‘quid’ would be the contribution that the baby’s parents made in order to attend the event at which the kiss was bestowed,” the former federal officials argued in the brief.
McDonnell’s support, though, was not unanimous.
House Speaker William J. Howell (R-Stafford), a longtime friend of McDonnell’s, did not sign a brief, said spokesman Matthew Moran, who declined to elaborate. Howell has walked a fine line amid the McDonnell scandal, standing by McDonnell personally while also calling for stricter ethics rules in response to it.
For some lawmakers, signing seemed to pose a conflict for their day jobs. That was the case for Del. David B. Albo (R-Fairfax), who declined to sign even though he has said he thinks so highly of the former governor that he would want him to raise his son if something ever happened to him and his wife.
“It’s pending litigation and I’m a lawyer,” Albo said, adding that he had “certain professional things to worry about.”
Albo declined to elaborate, but said he agreed with the general thrust of the brief, that the broad definition of what constitutes an “official act” has legislators at risk of prosecution for engaging in innocent constituent service.
Albo said that those who signed briefs were not trying to excuse McDonnell’s behavior.
“I’m not saying anybody who signs an amicus brief approves of what Bob did, because we all thought taking the gifts was not right,” Albo said. “But we don’t necessarily think it was illegal. They’re not trying to excuse their behavior. All they’re saying is, ‘We need a new trial, a new jury instruction, because we cannot do our job under this interpretation of the law.’ ”
Rosalind S. Helderman and Jenna Portnoy contributed to this report.